The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 15, 2000, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that the claim was not acceptable. The Panel discussed the case following the hearing on November 15, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On January 28, 2000, the claimant filed an application for compensation benefits indicating that she injured her left hip, knee and ankle on January 3, 2000, from continuously bending over to pick up garbage cans or other items off the floor during the course of her employment as a cleaner. The claimant indicated on her application form that she advised her employer of the accident on January 19, 2000 as she thought she was going to get better and she was already seeing a chiropractor.

A Chiropractor's First Report dated January 22, 2000, (date of first treatment was January 6, 2000) outlined the worker's history of injury as follows: "I was bending down to pick up a garbage can and felt my low back snap. I had immediate left sided low back pain." The diagnosis rendered by the chiropractor was an acute lower lumbar and left sacroiliac joint irritation with nerve root irritation at L4-5 and L5-S1.

The claimant sought treatment from a walk-in clinic on January 13, 2000. The report showed a two week history of left hip pain radiating to the leg and occasional numbness in the lateral cutaneous nerve of the thigh distribution.

On February 2, 2000, the family physician indicated that the claimant was seen on January 14, 2000 indicating that she had a sore back for a couple of weeks. Examination revealed a radiating pain to the left lower lumbar region. The claimant returned for treatment on January 19th, continuing to have pain on her left side with some radiation. The physician stated that he asked the claimant if she thought this had happened at work and she said she did not think so.

In a letter dated February 9, 2000, an advocate for the accident employer requested that the Workers Compensation Board (WCB) thoroughly investigate the claim based on the following concerns:

• there was a "significant delay" in reporting of the injury to the employer, i..e the injury date being January 3, 2000 was not reported to the employer until January 19, 2000;
• the claimant was well versed in the workers compensation system and was previously advised by the WCB of the proper reporting procedures.
• the 'accident' was non-specific in nature and it appeared that no specific incident occurred.
• the repetitive mechanism reported by the claimant did not seem to be congruous with the injuries sustained. The advocate stated that the bending, which the claimant attributed her condition to, would more likely result in back difficulties, if anything, and that it was unclear how it could result in knee and ankle difficulties.
• "even though the claimant went off work, she did not immediately relate this to her work, at least not to the employer."

A WCB adjudicator documented the following information that he obtained from the claimant during a telephone conversation on February 22, 2000:

• on January 1, 2000, the claimant stated she was bending over to pick up a garbage can and some paper when pain started in her left lower back and hip, down into the left knee/ankle. While bending at the knees, the claimant said she felt a snap in her left low back and hip. There were no witnesses to the incident and the claimant stated she told no one what occurred as she did not think anyone would believe her.
• prior to her shift on January 1, 2000, the claimant stated she had no prior problems with her left knee, hip or ankle.
• the claimant stated that she continued working at regular duties on January 2, 3, 4, 5 and 6, 2000 and had a lot of pain but did not mention her difficulties to anyone. She stated that she attended a doctor on January 6, 2000 and that she delayed in seeking medical attention because she thought the pain would go away. The claimant stated that she called into work on January 7, 8, 9, 10, and 11, 2000 and left messages on the answering machine indicating that she had a problems with her hip and was going to a chiropractor.
• the claimant advised that she worked a full shift at regular duties on January 12, 2000, but her left low back, hip, knee and ankle were sore. The claimant stated that she told her supervisor and boss about her difficulties on this day.

On February 28, 2000, the claimant spoke with a second adjudicator and the following information was recorded:

• the correct date of accident was January 1, 2000 and not January 3, 2000. The claimant stated she felt a sharp pain when bending over to pick up a garbage can and some Kleenex that had dropped on the floor beside the garbage. The pain was left sided in the low back and radiated through the buttock, groin and left leg/knee.
• the claimant told the adjudicator that she worked with a partner but clarified that she didn't say anything to her partner about her compensable injury or the signs and symptoms. She said she was able to perform her regular duties albeit with a lot of pain and that she didn't ask for help.
• the claimant stated that she was wrong not to report her compensable injury or mention signs and symptoms to her employer. She felt that her co-workers would have put her down so she kept silent. The claimant further indicated that she spoke to her supervisor on January 6, 2000 but nothing was said to him about her compensable injury.
• the claimant was asked why it took until January 28, 2000 to file a compensation claim. The claimant replied that she had filled out WCB forms at work on January 13, 2000 and assumed that her employer (the director of the company) would file her claim for WCB.

On March 1, 2000, the adjudicator spoke with the accident employer's director by phone. The director stated that neither she nor the claimant's supervisor was aware of a workplace accident prior to January 19, 2000. The director indicated that she spoke with the claimant on January 12, 2000 but was not aware that the complaints made by the claimant were related to work. The director indicated that all employees are aware that should they suffer a compensable injury that they should call the supervisor's pager immediately.

In a letter dated March 17, 2000, Rehabilitation and Compensation Services advised the claimant that her claim for compensation was denied based on the following basis:

• that the evidence did not establish that an injury occurred at work;
• that injury was not reported to the employer within a reasonable amount of time; and
• the claimant did not seek treatment for her symptoms immediately following the incident and was able to perform her regular activities until January 6, 2000.

On May 24, 2000, a worker advisor appealed the above decision contending that the claim met the requirements of Section 4(1) and 1(1) of the Workers Compensation Act (the Act). In support of her position, a chiropractic report dated May 9, 2000 was submitted for consideration.

In a letter to the worker advisor dated June 1, 2000, Rehabilitation and Compensation Services confirmed its previous decision to deny benefits and services to the claimant. The case was then referred to Review Office for further consideration.

On July 21, 2000, Review Office determined that the claim for compensation was not acceptable. Review Office was unable to establish that the claimant sustained an accident on January 1, 2000, based on the following factors:

• the claimant initially reported an injury occurring on approximately January 3, 2000 and said there was no specific time of injury. The area of injury was to the left hip, knee and ankle. The claimant later changed her claim to a specific accident occurring on January 1, 2000 to the lower back, left hip, knee and ankle and identified immediate symptoms;
• the claimant was able to identify a specific injury occurring at work on January 1, 2000 to the chiropractic consultant. When she attended a walk in clinic on January 13, she reported a two-week history of left hip pain. When she attended her family physician on January 14, 2000 she said she did not think her injury happened at work.

In addition to the above, Review Office indicated it was unable to excuse the claimant's delay in reporting her injury based on a number of factors. In particular, Review Office noted that the claimant knew of the requirements to report a work related injury given the fact that she had experienced similar problems with not reporting a 1998 compensation claim.

On August 10, 2000, the claimant disagreed with the Review Office's decision stating that the facts of the case were in dispute. On November 15, 2000, a hearing was held at the Appeal Commission.

Reasons

In determining whether or not the claim for compensation made by the claimant is acceptable, it is first necessary to determine whether an injury was sustained by way of an accident that arose out of and in the course of her employment. According to WCB adjudicative guidelines on this issue, this would mean that the accident would have to be caused by some hazard which resulted from the nature, conditions, or obligations of the claimant's employment and that the accident happened at a time and place, and in circumstances consistent with and reasonably essential to her employment (Section 20, Policy 44.05).

Given all of the evidence on the claimant's WCB file and the evidence given orally at the hearing of this matter, the panel is unable to conclude, on a balance of probabilities, that the accident as described by the claimant did indeed occur and if it did that it arose out of and in the course of her employment.

The principle difficulty with this case is that there are too many inconsistencies in the evidence of the claimant which cumulatively result in her evidence not being credible. Throughout the file and at the hearing of this matter the claimant provided three different versions of what area of her body was allegedly injured. In her oral evidence she described her injury as being "a snap in the buttocks" (transcript p. 12) and that the pain was "just in the buttocks and it was working down the leg" (transcript p. 13). On January 7, 2000, when she called into work to leave a message the employer stated that she advised that she had a hip problem and was seeing a chiropractor for it. The position of the claimant was that she also advised that she had a back problem although this is denied by the employer who ordinarily makes notes of all such conversations. On her first chiropractor's visit on January 6, 2000, her description was that she felt her "low back snap". Finally, on the Employer's Report of Injury form (filed as Exhibit #2 in these proceedings) she described her left hip, knee, and ankle as being injured.

Of equal concern to the Panel is the claimant's failure to report the accident in a timely fashion despite having numerous opportunities to do so and despite being advised to by the staff at her chiropractor's office on several occasions to report the alleged injury. The evidence is very clear that the claimant delayed reporting her accident to the employer until January 19, 2000, a full 18 days after she alleged the accident occurred. The claimant was at work January 1, 2, and 3, and yet did not report the accident or mention having any difficulties to her co-workers. She did not seek medical treatment until January 6, 2000, and called in sick on January 7, 8, 9, 10, and 11, 2000. During these calls she did not mention to her employer that she had injured herself at work.

She returned to work on January 12, 2000, and while she says that she told her employers of her injury on that date and January 15, 2000, they have denied that she did this and no notation was made on her human resources file of any reported injury. The contention of the employer is that they have strict standards governing reports of workplace accidents and all supervisors are to report these to their Human Resources Department so that WCB forms can be filled out. The employer argued that the supervisor did not do this and as a result this is further evidence that the claimant did not advise them that an accident had occurred at work. This argument has credibility given the later evidence of the employer that the claimant often called in sick with varying ailments and had in fact called in so much that her sick leave was used up by January 11, 2000. There would have been no reason to "assume" her problems were anything other than her usual absences from work due to non-work related ailments.

There are also some concerns as to when the alleged accident actually occurred. When the claimant finally did make an accident report to her employer she stated that the injury occurred "approximately January 3, 2000" (Exhibit #2 in these proceedings) despite now claiming in oral evidence that the actual date was January 1, 2000. This report was not made until January 19, 2000, and then despite having made that report she did not fill out a WCB claim form until January 28, 2000, some 27 days after the accident.

The Chiropractor's First Report is equally troubling. Despite seeing the chiropractor on January 6, 2000, the form was not filled out until January 22, 2000. In an October 16, 2000, letter from the claimant's treating chiropractor she states that the chiropractor who saw the claimant on January 6, 2000, initially elected to treat the claimant as a "private patient". This was for over eight visits and begs the question as to why the claimant would have been treated as a private patient if the chiropractor knew, as was later claimed, that the claimant had suffered a workplace accident. It is also of concern to us that the chiropractor initially confused the alleged date of accident as being January 3, 2000, and later corrected it to be January 1, 2000.

We have also stated that while the claimant was able to identify that a specific injury occurred at work to the chiropractor on the initial visit, when she attended a walk-in clinic on January 13, 2000, she reported a two week history of left hip pain. We also note the position of the claimant's treating physician in his report of February 2, 2000, where he reports the following after his examination on January 19, 2000:

"I asked her at that visit if she thought that this had happened at work, and she said she did not think so"

There are several other inconsistencies on the claimant's file including a memo dated February 28, 2000, from WCB staff advising that the claimant had been interviewed for further clarification of her claim and that she had advised that she had filled out her WCB forms on January 13, 2000. It is a fact that no forms were filled out on that date. When questioned about this at the hearing of this matter, the claimant could not recall the event. This, combined with an earlier statement by the claimant that forms had been filled out on January 3, 2000 for WCB benefits, adds further to the uncertainty of the claimant's evidence.

It is also to be noted that the claimant was familiar with both her employer's WCB policy and WCB policy itself with respect to the reporting of claims. Not only had she been advised several times of the necessity of early and proper reporting, but she had been through the exact same situation with her last WCB claim where she failed to report an accident in a timely fashion (Claim #9808 0348/8D). In that case we note that the Review Office had informed her of the importance of proper accident/injury reporting procedure.

At the hearing of this matter the claimant was questioned as to why she had not reported the alleged accident of January 1, 2000 until January 28, 2000 to the WCB. Her explanation was that she had simply made a mistake. She was also asked why she had not mentioned the alleged accident or any of the pain complaints that she had following the alleged accident to any of her co-workers and her answer was that she did not feel that they would believe her. Her oversights in these two areas further adds to the credibility of her evidence and lends some doubt as to whether an accident did occur and if it did, when and where it actually happened.

The Panel has no doubt that the claimant, at the time of the hearing of this matter, was in a great deal of pain. We note that an x-ray taken on May 9, 2000, indicated that she had significant osteoarthritic changes in her lumbosacral spine. While we do not have the appropriate evidence before us to find that an accident did occur while the claimant was at work, we are of the opinion that there may be other contributing factors to the claimant's pain that are possibly non work related.

Accordingly, given all the inconsistencies on the claimant's file, we are unable to find, on a balance of probabilities, than an accident was suffered by the claimant in the course of her employment.

Panel Members

K. Dunlop, Q.C., Presiding Officer
R. Brazzel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of January, 2001